SC seeks response from ED on Mallya's plea

New Delhi : The Supreme Court on Friday sought the Enforcement Directorate's response on beleaguered industrialist Vijay Mallya's plea challenging the proceedings before a Mumbai court seeking to declare him a fugitive economic offender and attach his assets.

Issuing notice to the ED and the Maharashtra government, a bench of Chief Justice Ranjan Gogoi and Justice Sanjay Kishan Kaul, however, did not put on hold the proceedings before the Mumbai Special court against Mallya under the Fugitive Economic Offenders Act.

Senior counsel Fali Nariman, who appeared for Mallya, said that any such declaration would directly affect the rights of the various parties including the lending banks who are seeking the recovery of their money given to now grounded Kingfisher airlines.

Mallya has challenged the November 22, 2018 order of Bombay High Court rejecting his plea on the preliminary grounds that the October 30 order of the Special Court under the Prevention of Money Laundering Act, 2002 (PML Act) was not appealable under Section 17(1) of the Fugitive Economic Offenders Act (FEO Act).

The High Court had said that the October 30 order of the Special Court under the Prevention of Money Laundering Act, 2002 and the Fugitive Economic Offenders Act could not be appealed under the FEO Acty as the Special Court had not decided any issue or determined any right of Mallya.

Mallya in his petition has said that the Bombay High Court should have given primacy to the determination of a question whether he was in possession of any "proceeds of crime", which he contended could only be decided in the "earlier proceedings pending before the appellate tribunal".

"The dismissal of stay application amounts to determination of an issue, apart from adversely affecting the petitioner's rights," Mally said in his appeal against the High Court order.

The appeal further contended that the declaration that Mallya was "an alleged fugitive economic offender could not be viewed in vacuum and in disjunction from the issue of confiscation of properties/assets under FEO Act".

It contended that "an order declaring Mallya as an alleged "fugitive economic offender" and thereafter not proceeding to order confiscation of his properties/assets would amount to passing an order in futility.

The appeal has said that the High Court had failed to appreciate that all the assets and properties of which confiscation was sought were the subject matter of proceedings initiated by ED under PMLA and the probe agency was already in possession of them.

The Directorate of Enforcement in July moved the Special Court under the PML Act seeking to declare Mallya as a "fugitive economic offender" under the Fugitive Economic Offenders' Act, 2018, and confiscate his assets worth around Rs 12,500 crore.